Ways to challenge a will
- AuthorRachel Leech
Challenging wills is becoming increasingly common, but what are the grounds for doing so?
The main grounds for challenging a will are:
- The will did not comply with the necessary formalities;
- Lack of knowledge and approval of the contents of the will;
- Lack of mental capacity to make a will;
- Undue influence; or
- The will has been revoked
If you believe a will is invalid for any of the above reasons, the first step you should usually take is to enter a caveat, this will be explained in a future blog.
Challenging a will, however, is a complex process and it can take a long time to gather the required evidence to prove the will is invalid. Our specialist team here at Birkett Long has experience dealing with caveats and all the different ways to challenge a will, and can guide you through the process. We will shortly be posting blogs about the processes - so watch this space!
If a will was professionally drafted, someone interested in the estate can make what is known as a Larke v Nugus request to the person who drafted the will. This request allows the will drafter to break their duty of confidentiality to the deceased and release a statement regarding the preparation of the will and the circumstances in which it was executed. Usually, if the executor consents, the will drafter will also provide a copy of their file. This can often be useful evidence as there would usually be notes detailing the instructions the deceased gave and the will drafter’s opinion on whether the deceased had the capacity to make the will, approved its contents and whether they were acting of their own free will, free from any undue influence.
Key evidence can also be found in the deceased’s medical records, which can be obtained with the executors’ authority. These can often give an insight as to whether the deceased had the capacity to make a will and assist an expert in producing a report on the deceased’s capacity.
What happens if you are successful in challenging a will?
If you are successful in challenging a will, the said will is deemed invalid, and any previous will takes effect instead. If there is no previous will, then the intestacy rules will apply. Therefore, if you are considering challenging a will, it is usually only worth doing so if you inherit under a previous will or the intestacy rules.
If you would like to discuss how to challenge a will, please contact a member of our specialist Court of Protection & Inheritance Disputes team who will be able to assist you. I am based at our Colchester Office and can be reached on 01206 217 623 or email@example.com
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